Judith Q. Chavez v. Our Lady of Lourdes Hospital
This text of Judith Q. Chavez v. Our Lady of Lourdes Hospital (Judith Q. Chavez v. Our Lady of Lourdes Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
FILED FEBRUARY 9, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
JUDITH Q. CHAVEZ, KATHLEEN ) CHRISTIANSON, ORALIA GARCIA, ) No. 33556-9-111 and MARRIETTA JONES, individually, ) and on behalf of all similarly situated ) registered nurses employed by Our Lady ) of Lourdes Hospital at Pasco, d/b/a ) Lourdes Medical Center, ) UNPUBLISHED OPINION ) Petitioners, ) ) v. ) ) OUR LADY OF LOURDES HOSPITAL ) AT PASCO, d/b/a LOURDES MEDICAL ) CENTER and JOHN SERLE, individually ) and in his capacity as an agent and officer ) of Lourdes Medical Center, ) ) Respondents. )
FEARING, C.J. -Marietta Jones, Oralia Garcia, Kathleen Christianson, and Judith
Chavez, present or former nurses at Pasco's Lourdes Medical Center, sue the hospital and
its administrator, John Serie, for allegedly failing to provide nurses with rest periods and No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
meal periods and failing to pay wages owed as a result of the denial of the periods. The
nurses appeal from the trial court's refusal to certify the lawsuit as a class action. The
trial court ruled that the requirements of CR 23(a) were met, but that the nurses failed to
establish one of the three alternative prerequisites under CR 23(b), including
predominance and superiority as required by CR 23(b)(3). Because the trial court is in
the best position to determine whether a class action is the superior method of resolving a
lawsuit, we defer to the trial court and affirm its denial of certification. We conclude the
trial court did not abuse its discretion in this important decision.
FACTS
Lourdes Medical Center is a nonprofit hospital located in Pasco and serving the
Tri-Cities region. The hospital maintained or maintains nine departments: an emergency
room department, an obstetrics and birthing department, an intensive care unit, a medical-
surgical unit, a same day surgery unit, gastrointestinal services department, a
rehabilitation center, a post anesthesia care or observation unit, and an operating room
department. In June 2013, the hospital, for financial reasons, closed its obstetric unit.
Lourdes employs more than one hundred registered nurses, on a full-time, part-time, and
per diem basis. Most nurses work twelve-hour shifts.
This lawsuit concerns how Lourdes accounted for nurse's work time and afforded
meal and rest breaks. Because the sole issue on appeal concerns certification of a class
action, our statement of facts focuses on facts relevant to certification more than facts
2 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
relevant to the underlying causes of action against Lourdes Medical Center. Still the
facts regarding the substantive claims hold relevance. The nurses claim that: ( 1) Lourdes
systematically failed to record and compensate nurses for missed rest periods, (2) the
hospital failed to provide scheduled rest periods as required by law and its own policies,
(3) the hospital failed to compensate nurses for on call meal periods, (4) Lourdes failed to
provide nurses with a second meal period during twelve-hour shifts, and (5) Lourdes
failed to compensate nurses for missed meal periods by discouraging nurses to report
missed meal periods. Although we do not mention Lourdes' administrator John Serie
again, the reader may assume that our analysis of claims against him mirror our analysis
of claims against Lourdes Medical Center.
The order denying class certification omits a reference to the declarations and
affidavits that the trial court reviewed when considering the motion for certification.
Therefore, we consider all testimony regardless of whether the testimony addressed a
summary judgment motion or the class certification motion. The parties inundated the
trial court and inundate us with declarations and deposition excerpts, not that there is
anything wrong with that. The nurses' testimony focuses on the rest period, meal period,
and worktime accounting at the hospital. Lourdes' testimony focuses on differences
between schedules and tasks of individual nurses and nurses by department and by shift.
The declarations from the respective parties and their witnesses often conflict.
The parties agree that Lourdes Medical Center utilized a web-based timekeeping
3 No. 33556-9-111 Chavez v. Our Lady of Lourdes Hosp.
system called Kronos to record employee work time. Employees used Kronos to clock
the beginning of work and clock the ending of work. Kronos automatically deducted
thirty minutes from an employee's compensable time for a meal period for any shift
longer than five hours. When an employee clocked out, the employee could account for a
missed meal period by canceling the automatic meal period deduction. When an
employee reported a missed meal period, Lourdes paid for the half hour at the appropriate
regular or overtime rate. The Kronos system did not record rest periods or missed rest
periods.
Lourdes Medical Center maintained no policy that directed nurses to report missed
rest breaks to the hospital payroll office and had no formal process for a nurse to report a
missed break. Before March 2013, the hospital had no knowledge of any nurse being
paid for a missed rest period, maintained no policy that provided for payment for a
missed rest break, and never informed employees of the right to receive additional
payment for a missed rest break.
We now outline testimony of the plaintiff nurses and their witnesses. We will
later outline testimony of Lourdes Medical Center's witnesses.
According to plaintiff nurses, a Washington regulation prohibits a nurse assigned
to a patient of abandoning the patient and requires every nurse to transfer a patient's care
to another qualified nurse when leaving an assignment. If a Lourdes Medical Center
nurse abandoned a patient assignment without a transference, she would suffer discipline.
4 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
This rule imposes an obstacle for a nurse with a patient assignment from taking a rest
break. Whether a nurse exercises a rest break depends on whether the hospital provides
her with another nurse to transfer patient care or the fortuitous event of no patient to care
for during a break period. The hospital maintains no procedure of relieving nurses
assigned to a patient's care.
Lourdes Medical Center generally assigns nurses to twelve-hour shifts. The
hospital did not allow nurses two meal periods during these shifts. The Kronos time
electronic system failed to note that nurses, on this half-day shift, should receive two
meal breaks. The hospital maintained no system to report missed second lunches.
Nurses testified that they often worked a twelve-hour shift without a second meal break.
According to plaintiff witnesses, a Lourdes Medical Center employee subjected
herself to discipline if she worked overtime without authorization. Therefore, if a nurse
missed a meal period and pressed the deduct cancelation button with the result that she
worked overtime during a pay period, the hospital might discipline her. Nevertheless,
plaintiffs Oralia Garcia and Marietta Jones testified that every time they reported missing
a meal period, the hospital paid each at the appropriate rate, which testimony may
Free access — add to your briefcase to read the full text and ask questions with AI
FILED FEBRUARY 9, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
JUDITH Q. CHAVEZ, KATHLEEN ) CHRISTIANSON, ORALIA GARCIA, ) No. 33556-9-111 and MARRIETTA JONES, individually, ) and on behalf of all similarly situated ) registered nurses employed by Our Lady ) of Lourdes Hospital at Pasco, d/b/a ) Lourdes Medical Center, ) UNPUBLISHED OPINION ) Petitioners, ) ) v. ) ) OUR LADY OF LOURDES HOSPITAL ) AT PASCO, d/b/a LOURDES MEDICAL ) CENTER and JOHN SERLE, individually ) and in his capacity as an agent and officer ) of Lourdes Medical Center, ) ) Respondents. )
FEARING, C.J. -Marietta Jones, Oralia Garcia, Kathleen Christianson, and Judith
Chavez, present or former nurses at Pasco's Lourdes Medical Center, sue the hospital and
its administrator, John Serie, for allegedly failing to provide nurses with rest periods and No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
meal periods and failing to pay wages owed as a result of the denial of the periods. The
nurses appeal from the trial court's refusal to certify the lawsuit as a class action. The
trial court ruled that the requirements of CR 23(a) were met, but that the nurses failed to
establish one of the three alternative prerequisites under CR 23(b), including
predominance and superiority as required by CR 23(b)(3). Because the trial court is in
the best position to determine whether a class action is the superior method of resolving a
lawsuit, we defer to the trial court and affirm its denial of certification. We conclude the
trial court did not abuse its discretion in this important decision.
FACTS
Lourdes Medical Center is a nonprofit hospital located in Pasco and serving the
Tri-Cities region. The hospital maintained or maintains nine departments: an emergency
room department, an obstetrics and birthing department, an intensive care unit, a medical-
surgical unit, a same day surgery unit, gastrointestinal services department, a
rehabilitation center, a post anesthesia care or observation unit, and an operating room
department. In June 2013, the hospital, for financial reasons, closed its obstetric unit.
Lourdes employs more than one hundred registered nurses, on a full-time, part-time, and
per diem basis. Most nurses work twelve-hour shifts.
This lawsuit concerns how Lourdes accounted for nurse's work time and afforded
meal and rest breaks. Because the sole issue on appeal concerns certification of a class
action, our statement of facts focuses on facts relevant to certification more than facts
2 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
relevant to the underlying causes of action against Lourdes Medical Center. Still the
facts regarding the substantive claims hold relevance. The nurses claim that: ( 1) Lourdes
systematically failed to record and compensate nurses for missed rest periods, (2) the
hospital failed to provide scheduled rest periods as required by law and its own policies,
(3) the hospital failed to compensate nurses for on call meal periods, (4) Lourdes failed to
provide nurses with a second meal period during twelve-hour shifts, and (5) Lourdes
failed to compensate nurses for missed meal periods by discouraging nurses to report
missed meal periods. Although we do not mention Lourdes' administrator John Serie
again, the reader may assume that our analysis of claims against him mirror our analysis
of claims against Lourdes Medical Center.
The order denying class certification omits a reference to the declarations and
affidavits that the trial court reviewed when considering the motion for certification.
Therefore, we consider all testimony regardless of whether the testimony addressed a
summary judgment motion or the class certification motion. The parties inundated the
trial court and inundate us with declarations and deposition excerpts, not that there is
anything wrong with that. The nurses' testimony focuses on the rest period, meal period,
and worktime accounting at the hospital. Lourdes' testimony focuses on differences
between schedules and tasks of individual nurses and nurses by department and by shift.
The declarations from the respective parties and their witnesses often conflict.
The parties agree that Lourdes Medical Center utilized a web-based timekeeping
3 No. 33556-9-111 Chavez v. Our Lady of Lourdes Hosp.
system called Kronos to record employee work time. Employees used Kronos to clock
the beginning of work and clock the ending of work. Kronos automatically deducted
thirty minutes from an employee's compensable time for a meal period for any shift
longer than five hours. When an employee clocked out, the employee could account for a
missed meal period by canceling the automatic meal period deduction. When an
employee reported a missed meal period, Lourdes paid for the half hour at the appropriate
regular or overtime rate. The Kronos system did not record rest periods or missed rest
periods.
Lourdes Medical Center maintained no policy that directed nurses to report missed
rest breaks to the hospital payroll office and had no formal process for a nurse to report a
missed break. Before March 2013, the hospital had no knowledge of any nurse being
paid for a missed rest period, maintained no policy that provided for payment for a
missed rest break, and never informed employees of the right to receive additional
payment for a missed rest break.
We now outline testimony of the plaintiff nurses and their witnesses. We will
later outline testimony of Lourdes Medical Center's witnesses.
According to plaintiff nurses, a Washington regulation prohibits a nurse assigned
to a patient of abandoning the patient and requires every nurse to transfer a patient's care
to another qualified nurse when leaving an assignment. If a Lourdes Medical Center
nurse abandoned a patient assignment without a transference, she would suffer discipline.
4 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
This rule imposes an obstacle for a nurse with a patient assignment from taking a rest
break. Whether a nurse exercises a rest break depends on whether the hospital provides
her with another nurse to transfer patient care or the fortuitous event of no patient to care
for during a break period. The hospital maintains no procedure of relieving nurses
assigned to a patient's care.
Lourdes Medical Center generally assigns nurses to twelve-hour shifts. The
hospital did not allow nurses two meal periods during these shifts. The Kronos time
electronic system failed to note that nurses, on this half-day shift, should receive two
meal breaks. The hospital maintained no system to report missed second lunches.
Nurses testified that they often worked a twelve-hour shift without a second meal break.
According to plaintiff witnesses, a Lourdes Medical Center employee subjected
herself to discipline if she worked overtime without authorization. Therefore, if a nurse
missed a meal period and pressed the deduct cancelation button with the result that she
worked overtime during a pay period, the hospital might discipline her. Nevertheless,
plaintiffs Oralia Garcia and Marietta Jones testified that every time they reported missing
a meal period, the hospital paid each at the appropriate rate, which testimony may
conflict with the hospital's concession that no payment occurred before 2013. Garcia and
Jones also respectively testified that the hospital never disciplined them for missing meal
periods or reporting missed meal breaks.
5 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
Oralia Garcia worked as a registered nurse in Lourdes Medical Center's
emergency department from 2005 to June 25, 2012. She sometimes assisted in the
ambulatory unit. The hospital claims that each of its nine departments discretely trained
its department nurses regarding rests and meals. Garcia testified that emergency
department nurses never received unit specific training on using rest and meal periods.
She was unaware of unit policies that cover rest and meal periods.
As part of its defense to this lawsuit, Lourdes Medical Center contends it met its
obligation to allow an employee a fifteen-minute break for every four hours worked, if
the employee periodically took small breaks from work duties and those small breaks
totaled in time fifteen minutes. Lourdes calls these breaks "intermittent" or "mini"
breaks. Presumably, under the hospital's theory, if a nurse rested by closing her eyes for
ten seconds, those seconds counted toward a fifteen-minute break. According to Oralia
Garcia, Lourdes Medical Center management told her, upon her hire, that she would
receive two fifteen-minute minute block rest periods in a twelve-hour shift. Management
never suggested to her that she take rest periods in smaller increments of time that, over
the course of the day, would equal a half hour. Oralia Garcia conceded sometimes
patient flow allowed emergency room nurses to enjoy small incremental breaks, chat
about personal matters, surf the internet, check e-mail, read magazines or newspapers, or
eat a snack.
6 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
According to Oralia Garcia, she frequently missed rest periods. The hospital never
assigned another nurse to cover for her during a break. She never observed any nurse
transferring duties regarding a patient to another registered nurse during a rest break.
Garcia averred that the nursing commission and Lourdes Medical Center held a nurse
responsible for the care of a patient even during a time that the nurse rested. Therefore,
emergency room nurses feared taking breaks.
Melissa Linfoot signed a declaration, in which she testified that emergency room
nurses enjoyed rest breaks. According to Oralia Garcia, Garcia worked with Melissa
Linfoot for over three hundred and fifty shifts in the emergency department. Garcia
challenges the testimony of Lin foot. Garcia observed Linfoot on many occasions work
without exercising rest or uninterrupted meal breaks.
Oralia Garcia testified that she never reported a missed rest period or received
additional compensation for a missed period. Hospital management never instructed her
to contact her supervisor to report a missed rest period. When Garcia worked in the
ambulatory unit, unit manager Dee Hazel told her that missed rest periods were lost time.
According to Oralia Garcia, Lourdes Medical Center never scheduled rest periods
for nurses. Garcia never refused to exercise a break or rest period when the hospital
arranged for a qualified nurse to assume patient responsibilities under protocol. Garcia
once refused to transfer a patient's care to a nurse who lacked required certifications and
7 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
needed training.
Oralia Garcia averred that, despite working twelve-hour shifts, Lourdes Medical
Center afforded her only one unpaid meal period. She further testified that she missed
ninety percent of her meal periods. She never noticed another nurse receiving two meal
breaks in a half-day shift. Garcia could not leave the hospital during meal breaks. The
hospital required her availability at all times to respond to emergencies and questions
concerning patient care.
Lourdes Medical Center claims that it utilized Go Where You're Needed (GWYN)
nurses, or nurses that floated from department to department to relieve nurses for rest
breaks. Garcia denied that the hospital employed GWYN nurses to allow nurses breaks.
Judith Chavez worked for the Lourdes Medical Center obstetrics department on
three twelve-hour shifts per week until the department closed in 2013. According to
Chavez, her charge nurse, during orientation, instructed her she must stay on the hospital
premises during meal periods in order to respond to emergencies. Judith Chavez testified
that family members sometimes brought her food at work during busy times when she
lacked thirty minutes of uninterrupted time to eat or when the hospital cafeteria was
closed. The family members deposited the food at the nurses' station because she
attended to patients and could not leave the obstetrics unit. She sometimes watched a
fetal monitor in the break room when exercising a meal period, for which she received no
pay. Judith Chavez also testified that she had no knowledge that she could cancel the
8 I No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
automatic meal period deduct programmed into the Kronos system when she needed to
stay at the hospital or when work obligations interrupted a meal.
Judith Chavez had never heard of Lourdes Medical Center' terminology of a "mini
break" or "intermittent break" until filing this lawsuit. Clerk's Papers (CP) at 144.
Chavez testified that at times she made personal phone calls and conversed with
coworkers, but these events occurred when she had a patient assignment and was
expected to provide patient care for a laboring mother.
Judith Chavez testified that Lourdes Medical Center never offered her a fifteen-
minute rest period during which she held no duties. In order to relax, she would need
fifteen minutes of uninterrupted rest after she transferred responsibility for a patient to
another nurse, not an occasional minute when under assignment. Chavez never
transferred care of a patient to another nurse in order to enjoy a fifteen-minute respite.
No one ever covered for Chavez during a rest period or a meal period.
Judith Chavez testified that Lourdes Medical Center never informed her that she
could report a missed rest period for additional compensation. The hospital never
instructed her to contact any supervisor if she missed a rest period. After she filed suit,
Lourdes Medical Center instructed her not to claim any rest periods even if she received
no fifteen-minute uninterrupted repose but experienced intermittent brief rests.
According to Judith Chavez, despite working only twelve-hour shifts, she never
received two meal breaks. Lourdes Medical Center informed her she could take only two
9 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
fifteen-minute breaks, not three, during a twelve-hour shift. Chavez denied any obstetrics
unit specific policies with regard to rest and meal breaks.
At the beginning of this suit, Marietta Jones worked as a registered nurse in the
observation and pre-admit units of Lourdes Medical Center. Earlier in her career, Jones
worked in all other hospital units, except the operating room. Jones served as a charge
nurse in the medical-surgical and the obstetrics departments. She usually worked twelve-
hour shifts.
According to Marietta Jones, Lourdes Medical Center management told her that
the hospital did not pay for missed rest periods. Hospital management never informed
her that she could report a missed period. Therefore, Jones never complained about
missed breaks. The hospital never mentioned to Jones the concept of a mini or
intermittent break until after the filing of this lawsuit. The hospital then instructed Jones
not to report missed rest breaks if she received intermittent breaks. Jones never received
unit specific training regarding rest periods and knows of no policies that apply only to a
department.
According to Marietta Jones, the obstetrics department lacked a nurse to cover for
another nurse exercising a rest break. Contrary to testimony of a supervisor, Jones never
refused a rest or meal period when offered. Once Jones' supervisor assigned another
nurse to relieve her during a lunch break, but the substituting nurse stated she could only
assist for ten minutes. Jones mentioned the nurse's statement to her supervisor Amber
10 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
Champagne-Wright, who appeared agitated but directed the relief nurse to substitute for a
half hour.
According to Marietta Jones, nurses cannot safely transfer patient duties to another
nurse for a break of two or three minutes in duration. Before the filing of suit, Jones
never observed a registered nurse transfer patient responsibility to another nurse so that
the first nurse could enjoy a respite.
During Marietta Jones' employment with Lourdes Medical Center, the hospital
maintained a policy of one unpaid meal period during a twelve-hour shift. The hospital's
Kronos system allowed only one deduction for a lunch during a shift. Management never
informed her to use the deduct button if she missed a meal. Jones encountered difficulty
eating meals while working because of interruptions for emergencies. She could not
leave the hospital for a meal without permission. The hospital utilized GWYN nurses to
fill open shifts not to relieve nurses for meal or rest periods.
Plaintiff Kathleen Christianson has worked for Lourdes Medical Center for over
twenty-six years and exclusively in the intensive care department since 2005. She
previously worked in all units, but the operating room unit. Lourdes also assigned her to
serve as its first cover or GWYN nurse. Nevertheless, according to Christianson, a
GWYN nurse substituted for an absent or ill nurse and rarely relieved on duty nurses.
The hospital never informed Christianson of unit specific policies regarding meal and rest
breaks.
11 No. 33556-9-111 Chavez v. Our Lady of Lourdes Hosp.
During her many years employed by Lourdes Medical Center, Kathleen
Christianson has never enjoyed a meal off premises. During all of her meal breaks, she
has responded to emergencies and doctor's instructions and answered questions from
other nurses.
Kathleen Christianson testified that, before this suit, Lourdes Medical Center
informed her she could take two paid fifteen-minute rest periods and one unpaid half hour
meal break during a twelve-hour shift. Lourdes did not inform her she could report a
missed break and receive compensation. She never received a second meal period during
a twelve-hour shift. The hospital never informed her of the ability or right to exercise a
second meal break.
According to Kathleen Christianson, no nurse ever covered her duties so that she
could exercise a work break. Lourdes Medical Center never relieved her from any
patient assignments during a shift. Contrary to the claim of Lourdes Medical Center,
Christianson denied ever rejecting the opportunity to exercise a rest period. She often
needed to return to work duties when taking a meal break.
Kathleen Christianson testified that Lourdes Medical Center constructed a policy
after this lawsuit, under which policy the hospital instructs nurses to take intermittent rest
breaks rather than full fifteen-minute breaks. According to Christianson, intermittent rest
breaks do not allow a nurse to transfer patient responsibilities to another nurse.
Intermittent breaks do not provide the relaxation needed during the course of a day.
12 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
Additional nurses signed declarations that echoed the testimony of the plaintiff
nurses. Emergency room nurses Vicki Haines and Melanie Bell stated that they exercised
no breaks. Conversely, other emergency room nurses testified that day and night shift
registered nurses could usually take a thirty-minute uninterrupted meal period and rest
We now address testimony submitted by Lourdes Medical Center. The hospital's
declarations focused on the difference between hospital departments and work shifts,
although the declarations also addressed whether Lourdes violated wage laws. Plaintiff
Marietta Jones, in her deposition, admitted a difference in the administration of breaks
from department to department. We organize the hospital's evidence by hospital
Seventeen part-time and full-time registered nurses work ·in the emergency
department at various times on eight or twelve-hour shifts. One nurse, generally the most
experienced, serves as the charge nurse. The charge nurse assesses work-flow and
patient placement and generally lacks patient assignments. Typically, one registered
nurse works in triage, one to order supplies, and another to track patient care. The triage
nurse also forgoes patient assignments, while the remaining nurses are assigned to rooms
inside the department.
The emergency department nursing orientation includes discussing meal periods
and rest breaks. Lourdes Medical Center does not identify ways in which the emergency
13 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
room's orientation regarding breaks may differ from other departments. Generally, a
registered nurse notifies the charge nurse that he or she wishes a break, although each
charge nurse administers meal periods and breaks differently.
The Lourdes Medical Center surgery department usually operates from 7 :00 a.m.
to 3:30 p.m., Monday through Friday, although emergency surgeries may occur at any
hour. This department enjoys a predictable patient flow since the department schedules
most surgeries in advance. A fixed schedule accommodates nurses' rest breaks and meal
Eight full-time registered nurses work eight-hour shifts in surgery. Tasks of
surgical nurses differ from duties of nurses in other departments. Surgeries require
technical precision. Registered nurses work closely with surgeons and must hold highly
specialized skills, including knowledge of surgical equipment. Typically, one nurse
serves as a charge nurse, lacks patient assignments, and coordinates and covers breaks.
Surgery department nurse orientation includes discussion of meal periods and rest
breaks. A surgical nurse rarely misses a meal and rest break, and, when missed,
according to Lourdes Medical Center, the hospital compensates the nurse for the hospital
missed time. The nurse notifies the charge nurse of a missed rest, and the charge nurse
records the missed period on a white board. The charge nurse assigns three registered
nurses for each two surgery rooms. A fifth registered nurse serves as a floating nurse,
assists with patient care, and covers meal periods and rest breaks. During a lengthy
14 No. 33556-9-111 Chavez v. Our Lady of Lourdes Hosp.
surgery, a surgical nurse will be relieved for a rest break or meal period.
Lourdes Medical Center also maintains a medical/surgery unit apparently separate
from the surgical department. The medical/surgical unit remains open twenty-four hours
a day, seven days per week and treats patients needing to stay at the hospital for over
twenty-four hours. In this department, registered nurses perform routine physical
assessments, administer medications, prepare patients for surgery, and monitor
postsurgery patients for complications. The nurses may assist with patient mobility,
dieting and toileting needs, check doctor orders, provide patient education and discharge
instructions, assist registered nurse students, and record treatment. The medical/surgery
unit experiences an unpredictable patient flow. Therefore, registered nurses coordinate
breaks based on personal preference and patient care.
Full-time, part-time, and per diem registered nurses, typically on twelve-hour
shifts, work in the medical/surgery unit. Nurses rotate into the role of charge nurse. The
charge nurse has additional duties of patient admissions, assigning patients to other
nurses, and assisting in scheduling. At night, registered nurses in the medical/surgery
department routinely exercise meal and rest breaks since patients in the unit sleep.
According to Lourdes Medical Center, some registered nurses in the unit waive meal
periods on a regular basis despite coverage being offered.
The patient acute care unit operates in tandem with the surgery department by
assessing surgical patients for pre-operative and intra-operative surgical care. Three full-
15 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
time and two part-time registered nurses work eight-hour shifts in the department.
Registered nurses in the unit undergo department orientation that includes training about
meal periods and rest breaks. According to Lourdes Medical Center, a nurse in the acute
care department rarely misses rest breaks and meal periods.
The same day surgery/ambulatory/gastrointestinal laboratory, also known as the
same day surgery department, functions from 6:00 a.m. to sometime between 3 p.m. and
6:30 p.m., depending on the day's completion of surgical procedures. This same day
surgery department enjoys a predictable patient flow because the unit schedules most
surgeries in advance. Nurses thereby experience predictable rest breaks and meal periods
within set windows of time.
Seven full-time and three part-time registered nurses work in the same day surgery
department. Although most work twelve-hour shifts, three nurses work eight-hour shifts,
and one works two eight-hour shifts and two twelve-hour shifts.
The observation department functions twenty-four hours per day, seven days per
week. Nevertheless, the department will temporarily close if it monitors no patients. The
observation department monitors patients coming from the emergency room and surgery
department and assists outpatients who undergo blood transfusions or receive antibiotics
or intravenous fluids. Five full-time and one part-time registered nurse, all working
twelve-hour shifts, labor in the observation department.
Dee Hazel managed the observation department until January 2012, when Teresa
16 No. 33556-9-III Chavez v. Our Lady ofLourdes Hosp.
Pleyo assumed management. Plaintiff Marietta Jones testified that the two had different
management styles. Under Pleyo, Jones felt comfortable reporting if she missed a meal
period.
The observation department provides training that covers department specific
procedures, including meal periods and rest breaks. Under department procedures, a
registered nurse must notify the charge nurse or coworkers of a break, but she does not
require preapproval from the manager. The transfer of patient care to another registered
nurse for meal periods or rest breaks in this unit is easier because the department serves
lower acuity patients. This process differs at night since only one registered nurse works
in the department during the night shift.
Except when the department's patient census is high, observation department
nurses rarely miss rest breaks and meal periods. At night, observation patients usually
sleep and require less direct patient care. Night shift nurses thereby enjoy more time to
engage in personal activities. Of course, according to the nurses, a nurse remains
laboring, despite engaging in personal activities, if she must respond to calls. According
to Lourdes Medical Center, registered nurses in the observation department take breaks in
small increments throughout the shift to chat about personal matters, check Facebook or
e-mail, use cell phones, or otherwise relax.
The intensive care unit treats patients requiring higher level care. The department
utilizes specialty equipment such as telemetry, respirators, central lines, and pacemakers.
17 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
Nurses monitor medications, monitor ventilators, oversee heavy sedation, manage drips,
and engage in emergency protocol and care for critically ill patients.
Full-time, part-time, and per diem registered nurses work in the intensive care unit
on twelve-hour shifts. One nurse serves as charge nurse on a shift. The charge nurse
coordinates patient admissions, monitors cardiac equipment, and assists with scheduling.
No registered nurse need be present in the unit if the unit houses no patient.
Nevertheless, one patient requires the presence of two qualified registered nurses. An
intensive care unit nurse can monitor only two patients at a time. In the absence of an
intensive care department patient, unit nurses may monitor medical/surgical unit patients.
The number of intensive care unit patients varies from time to time. The unit
usually houses one to two patients per day, and may go weeks without a patient. Staffing
levels generally allow unit nurses to realize meal periods and rest breaks. The unit
delivers a department specific orientation for registered nurses, and this orientation
discusses target times and protocols for meal periods and rest breaks. When there are two
intensive care unit registered nurses, breaks and meal periods can be taken.
According to Lourdes Medical Center, the required certification level for intensive
care unit registered nurses complicates finding relief for meal periods and rest breaks
with a high acuity patient, but another intensive care unit nurse is usually available to
provide relief. Even on busy days, unit nurses generally enjoy time to take breaks, eat, go
to the coffee shop, and text.
18 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
Cheryl Carr worked at Lourdes as supervisor of the intensive care unit. As
manager, she allowed unit registered nurses to coordinate rest and lunch breaks as they
wished. Most nurses insisted on taking breaks and lunches as they saw fit. As manager,
she observed nurses exercising mini-breaks to socialize, drink coffee, and make personal
phone calls. According to Carr, the small breaks totaled at least ten minutes for each four
hours. The intensive care unit was not as busy as other departments and allowed more
breaks for nurses. Some unit nurses refused a thirty-minute meal and instead preferred to
eat periodically. Plaintiff Kathy Christianson often refused a thirty-minute lunch break,
and Carr often reminded her to exercise the full break.
Suzanne Hannigan serves as Lourdes Medical Center Director of Nursing
Services. She supervises at least thirty-three nurses. Hannigan fears that nurses in the
intensive care unit formed a belief that they cannot take breaks or meal periods.
Hannigan does not know the source of this belief. Management has never told nurses that
they may not exercise breaks. When Hannigan learns that a nurse missed a meal period,
she instructs the nurse to cancel the meal deduct or inform payroll.
The inpatient rehabilitation department serves inpatients needing intense
rehabilitation following surgery or trauma. Patient flow is predictable. Registered nurses
in the department perform standard nursing tasks such as checking vitals, medication
management, handling intravenous lines, and assisting with patient transfers.
During most months, the inpatient rehabilitation department employs four full-
19 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
time registered nurses and three per diem registered nurses, all whom work twelve-hour
shifts. The unit designates one working nurse as the charge nurse. The department may
assign other registered nurses to assist with trauma patients. On Tuesdays and
Thursdays, unit nurses attend staff meeting and family rounds. The night nurses on
Mondays also perform chart reviews for Tuesday staff meetings.
According to Lourdes Medical Center, rehabilitation registered nurses undergo a
department specific orientation that covers meal periods and rest breaks, although the
hospital identified no differences from other departments. Nurses plan meal periods and
rest breaks at the onset of each shift. Rehabilitation nurses remain busy from 8 to 10 a.m.
and around meal times. Work slows in the inpatient rehabilitation unit by mid-morning
and between 1:00 p.m. and 4:30 p.m. because patients leave the department for therapy.
Registered nurses working night shift begin with a couple of hours of patient assessment
and care, but then patients sleep and require little attention. As a result, nurses working
in the rehabilitation department enjoy lengthy periods of downtime without patient care
or responsibilities. During this time, they chat about personal matters, use the internet, go
to the espresso bar or gift shop, make personal calls, or read.
The obstetrics and birthing unit closed in June 2013. Until that month, the
department remained open twenty-four hours a day, seven days per week. The obstetrics
department cared for laboring mothers and postpartum mothers and babies. The
department saw unpredictability because of unscheduled births. Sometimes, the unit
20 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
experienced weeks without a patient and then assisted numerous laboring mothers
simultaneously.
Eleven full-time and two part-time registered nurses worked at various times in
obstetrics, all on twelve-hour shifts. The unit maintained a daily minimum staff of four
nurses regardless of whether patients were present. One registered nurse acted as a
charge nurse and assisted in operation of the department. The charge nurse assigned
tasks such as checking crash carts, refrigerators, the warmer, and the C-section room,
mailing phenylketonuria data, ensuring the placement of all reports in patient charts, and
addressing concerns from physicians. Ideally, two registered nurses engaged in labor and
delivery, while other nurses delivered postpartum patient care.
Each obstetrics registered nurse received department training when meal periods
and rest breaks were discussed. Typically, a registered nurse informed the charge nurse if
he or she wished a break and gave a report about any patient status to the covering nurse.
Due to the relatively low numbers of patients served and core staffing levels,
registered nurses in Lourdes Medical Center obstetrics unit experienced prolonged
periods of idle time, during which they performed tasks unrelated to work. Registered
nurses ate a second meal together on a slow day. Some obstetrics nurses even covered
breaks and meal periods for registered nurses in other departments. Even on days with
patients, registered nurses in obstetrics could take small breaks, for at least ten minutes
per half day, to use cell phones, check e-mail, read magazines, get coffee, and grab
21 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
snacks.
Amber Champagne-Wright, a Lourdes Medical Center supervisor, signed a
declaration representative of other declarations signed by Lourdes managers and
supervisors. Managers, supervisors and other employees discussed, in their respective
declarations specific timing as to when they exercised lunch and other breaks. They
testified to canceling the automatic deduct function in the Kronos time management
system on the rare occasion when they missed a meal. They mentioned the difference
between a calm night shift and a day shift and dissimilarities between departments.
Amber Champagne-Wright averred that, since 2004, she has overseen several
Lourdes departments including the emergency room, ambulatory unit, observation
department, surgery room, labor and delivery unit, rehabilitation department, and medical
unit. Fifteen to twenty nurses work per shift. According to Champagne-Wright,
registered nurses, on a typical shift, received one thirty-minute unpaid lunch during the
first half of the shift. During the second half of any given shift, a registered nurse may
eat food in his or her unit. The primary factors determining whether a registered nurse
may eat during the second half of the shift is patient census and acuity of care needed.
Amber Champagne-Wright recognized that, when she eats a meal on a unit, she
sometimes encounters interruptions. She returns later to finish her meal. All Lourdes'
department nurses suffer these interruptions. Often times, despite the interruptions, she
still accumulates thirty minutes for the second meal. Depending on how busy she is,
22 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
Champagne-Wright and other nurses may enjoy two hours to eat during the second half
of the shift. The amount of time for a second meal break varies from shift to shift and
department to department.
Amber Champagne-Wright has not suffered discipline or docked pay for
exercising a second meal break. She encourages nurses that she supervises to have a
second meal. Night shift nurses find it easier to enjoy a second full meal block.
Obtaining a second meal break was more common in the obstetrics unit. Staffing
requirements demanded nurses in the obstetrics unit at all times, even if no patients
present. Nurses in the emergency room found it most difficult to obtain a second meal.
Champagne-Wright claims that, on some units and shifts, registered nurses enjoy a half
hour to two hours without active patient duties and during which they may pursue
personal activities.
Amber Champagne-Wright testified to differences among units. Most same day
surgery and ambulatory unit nurses work eight-hour shifts, while other nurses work
twelve-hour shifts. The typical nurse works thirty-six hours per week. Some full-time
nurses work overtime, while others rarely do. Part-time nurses rarely work overtime.
Amber Champagne-Wright testified that each new registered nurse undergoes
orientation specific to his or her departments. Each department orientation includes
instructions on meal periods and rest breaks. The charge nurse apprises each nurse to
account for unit specific circumstances that may alter her ability to take a lunch or rest
23 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
break.
Amber Champagne-Wright testified that the duties of registered nurses vary
between night and day shifts. Night nurses experience more free time. Because of this
time, night nurses must review a patient's entire chart and ensure the accuracy of the
chart. Registered nurse duties on weekend shifts echo the duties of a night shift nurse
because of more free time and less distraction from the administration and physicians.
According to Amber Champagne-Wright, Marietta Jones has refused a meal break.
Sara Barron served as the director of inpatient services from 2003-2010. Barron
learned in the early 2000s of lawsuits by nurses in other hospitals over meal and rest
breaks. Therefore, Barron diligently worked to ensure nurses obtained needed breaks.
According to Sara Barron, Judy Chavez refused to be relieved for lunch on several
occasions. Chavez's brother-in-law usually brought and ate lunch with her. Barron
claimed that Chavez made a significant number of personal calls during work hours.
Chavez also frequently socialized with other employees. Her intermittent personal time
would total at least ten minutes every four hours. Sara Barron also accused Marietta
Jones of socializing and engaging in personal activity throughout a shift. Jones' personal
time totaled ten minutes for every four hours worked.
Debra Hill works as Lourdes Medical Center's payroll coordinator. She trains
new employees and new managers on the Kronos system. If an employee misses a break
or meal, the employee may report the miss to a supervisor, who will contact Hill. Hill
24 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
will then adjust the payroll records.
According to Debra Hill, plaintiff Judith Chavez, after filing suit, contacted her
supervisor about missing a break. The supervisor notified Hill, who added fifteen
minutes to Chavez's work time. Plaintiff Oralia Garcia contacted Hill many times when
she did not get paid correctly. Hill then reviewed Garcia's time and pay and entered any
needed corrections. Hill expected Garcia to notify Hill of any missed lunches or breaks.
She did not.
According to Debra Hill, plaintiff Kathy Christenson frequently contacted her
about use of the Kronos system. Hill also expected Christenson to inform her of any
missed breaks. Christenson did not. Plaintiff Marrietta Jones contacted Hill when Jones
lost a Kronos password or had a question about pay. Jones never reported a missed
PROCEDURE
In June 2012, the nurses filed a complaint for unlawful withholding of wages and
alleged that the hospital failed to provide nurses with rest periods and meal periods. In
the original complaint, the nurses sought monetary, declaratory, and injunctive relief, in
addition to class certification.
Effective March 10, 2013, Lourdes adopted a new accounting system. The system
permits tracking of intermittent breaks, requires nurses to clock in and out for meal
periods, and allows nurses to track missed rest periods.
25 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
In April 2013, the nurses filed a motion for class action certification. They sought
a class of all registered nurses who worked at least one hourly shift at Lourdes Medical
Center at Pasco from June 25, 2009 through the then present to litigate common liability
questions related to the hospital's meal and break policies and practices. The nurses also
alternatively proposed subclasses of nurses by shift or department. In response, Lourdes
Medical Center filed affidavits by managers and supervisors that we quoted, in part,
above. Lourdes argued that operational differences within its departments would cause
difficulty in resolving damage questions.
After the trial court entertained initial arguments regarding class certification, the
court astutely postponed a decision on the motion and offered the nurses an opportunity
to present summary judgment motions to clarify the legal theories controlling Lourdes
Medical Center's exposure to liability. The law encourages the trial court, for purposes
of judicial economy, to delay ruling on a motion for class certification until after hearing
dispositive motions. Sheehan v. Central Puget Sound Regional Transit Authority, 155
Wn.2d 790, 123 P.3d 88 (2005). At different times, the nurses then brought three
summary judgment motions respectively relating to (1) nonmeal rest periods, (2) tracking
time and paying for missed rest periods, and (3) the need for a second meal period during
a twelve-hour shift. The trial court denied the nurses' motions for partial summary
judgment. The court concluded issues of fact existed as to whether individual nurses
were afforded time to take a meal break and whether individual nurses were relieved of
26 No. 33556-9-III Chavez v. Our Lady ofLourdes Hosp.
work in order to take a break. The ruling noted that availability of a meal break could
depend on the shift worked by a nurse.
In March 2015, the nurses amended their complaint. The amendment continues to
seek declaratory and injunctive relief. Nevertheless, the complaint notices Lourdes
Medical Center's March 2013 change in meals and breaks time keeping policies. The
nurses allege that "this lawsuit was a driving force in the policy change that allowed
nurses a way to track missed rest periods and that they have already obtained a
substantial, systemic victory on a class basis." CP at 1640. The amended complaint
sought a requested class period for workers laboring before March 10, 2013.
Also in March 2015, the nurses renewed their motion for class certification for all
registered nurses who worked at least one hourly shift at Lourdes Medical Center from
June 25, 2009 through March 10, 2013, and, in the alternative, if necessary, to certify
subclasses of these same nurses by department or shift hours. The trial court denied class
certification. The court ruled that the nurses met the class certification requirements of
CR 23(a) but not CR 23(b). In so ruling, the trial court found that the number of nurses
was sufficiently large to render joinder impractical. The trial court also found that the
potential class members' claims included common liability issues and that the class
representatives shared common issues with the class. At the conclusion of the hearing,
the trial court commented:
27 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
I still am going to deny the request for class certification because, in my mind, the class issues do not predominate. There are certainly some important class issues that are there and that exist, but, when the rubber meets the road, what happens from shift to shift, from nurse to nurse, from nurse type to nurse type, from census to census and so on, and so on it goes, if we had a class the generalities of what happened at Lourdes or what happens at Lourdes, I believe, would consume and overrun the specifics.
It does appear to me that virtually-well, I'll say all of the other requirements of CR 23 are met, but just not those-not those three, that way I've made a ruling on all of the subparts.
Report of Proceedings (RP) at 406-07. The order denying class action certification reads,
in part:
5. The Court finds plaintiffs have not met the required showing that a mandatory class action would be maintainable under CR23(b)(l) because the primary objective of this lawsuit is monetary damages and plaintiffs have failed to show prejudice to absent class members would occur. 6. The Court finds plaintiffs have not met the required showing that a mandatory class action would be maintainable under CR 23(b )(2) because the primary objective of this lawsuit is monetary damages and plaintiffs have failed to establish the necessity of declaratory or injunctive relief. 7. The Court finds plaintiffs have not met the required showing that a class action would be maintainable under CR 23(b)(3). The Court finds that common class issues do not predominate over individual questions because issues regarding shift, nurse type, nurse roles and job duties, patient assignments and census, managers, and department cause the specifics for each class member to overrun any generalities. The Court also finds that a class action is not superior to alternatives such as joinder or individual lawsuits for fair and efficient adjudication of the claims. Finally, the Court also finds that the proposed class, or the proposed nine subclasses by department, would be unmanageable at trial.
CP at 1011-12. We accepted discretionary review of the order denying class
certification.
28 No. 33556-9-III Chavez v. Our Lady ofLourdes Hosp.
LAW AND ANALYSIS
The nurses contend the trial court erred in some of its summary judgment rulings.
We did not accept discretionary review for the purpose of reviewing summary judgment
rulings and will not directly address any such rulings. We note that the law instructs
courts not to decide the merits of claims when ruling on class certification requests.
Washington Education Association v. Shelton School District No. 309, 93 Wn.2d 783,
790, 613 P.2d 769 (1980).
In challenging the trial court's order denying class certification, the nurses argue
on appeal that the trial court failed to liberally construe CR 23 in favor of certification,
the trial court failed to enter sufficient factual findings to justify denial of certification,
the trial court implicitly and erroneously found facts against them without conducting an
evidentiary hearing, the trial court erroneously required them to prove their case as a
matter of law, and the trial court erroneously required them to prove damages before
certification or discovery. We will not discretely address each argument, although we
reject each argument. We will address some of the arguments during the flow of our
analysis.
Lourdes Medical Center responds that the trial court acted within its discretion
because the court conducted a rigorous analysis of the class certification requirements.
The hospital also argues that individual issues predominate with each of the nurses'
theories of liability and that common issues do not control as required for certification
29 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
under CR 23(b )(3 ). Additionally, the hospital asserts that the trial court correctly
determined the class failed to meet CR 23(b)(3) because the class was unmanageable.
The plaintiff nurses and Lourdes Medical Center forward conflicting facts,
including facts important to determining whether to grant class certification. The parties
disagree as to the exercise of breaks by the plaintiff nurses, the extent to which Lourdes
Medical Center trained workers about meal and rest breaks, the difference in any training
and polices from department to department, whether the work atmosphere was conducive
or hostile to exercising breaks, the extent of differences with regard to the exercise of
breaks from department to department, from shift to shift, and from supervisor to
supervisor, the availability of coverage for breaks from department to department and
shift to shift, the various reactions of managers to the reporting of missed breaks and
meals, the extent to which twelve-hour workers received a second meal, the magnitude of
intermittent breaks, whether one or more nurses waived breaks, whether Lourdes paid
nurses for missed breaks and meals, and to what extent, if any, does the hospital owe the
plaintiff nurses money.
We determine that we must review the facts in a light most favorable to Lourdes
Medical Center. We find no case that explicitly directs us to view the facts in such a
gloss for purposes of reviewing a class action ruling, but logic and other tangential rules
compel such a conclusion. A reviewing court must defer to the trial court's findings of
fact entered when certifying or denying certification. Duncan v. Michigan, 300 Mich.
30 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
App. 176, 832 N.W.2d 761, 766 (2013). Although our trial court did not expressly
resolve conflicts in the evidence, the court must have done so when issuing its decision.
Plaintiff nurses complain that the trial court resolved conflicts in Lourdes' favor. This
resolution of the conflict would have included some determination of the credibility of
the respective evidence presented by the parties. We must assume the hospital's
testimony to be accurate or else we do not bestow full deference to the court's ruling
favoring the hospital. After a bench trial, we view the evidence in the light most
favorable to the winning party. City of Walla Walla v. $401,333.44, 164 Wn. App. 236,
256,262 P.3d 1239 (2011). Even when the trial court issues a ruling based on affidavits,
we view the evidence in favor of the prevailing party if the trial court weighed credibility
ofdeclarants. In re Marriage of Rideout, 150 Wn.2d 337,350, 77 P.3d 1174 (2003).
The nurses contend that the trial court should have conducted an evidentiary
hearing. In support of this argument, the nurses cite only Oda v. State, 111 Wn. App. 79,
93 n.4, 44 P.3d 8 (2002). The passage in Oda contrarily rejects the nurses' contention.
The passage reads that many courts encourage an evidentiary hearing, but no court has
held that an evidentiary hearing is required on the question of class certification. Oda v.
State, 111 Wn. App. at 93 n.4.
The class action is an exception to the usual rule that litigation is conducted by and
on behalf of the individual named parties only. Comcast Corp. v Behrend, 569 U.S._,
133 S. Ct. 1426, 1432, 185 L. Ed. 2d 515 (2013). The purposes of class actions include
31 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
the saving of members of the class the cost and trouble of filing individual suits and the
freeing of the defendant from the harassment of identical future litigation. Brown v.
Brown, 6 Wn. App. 249, 256-57, 492 P.2d 581 (1971). Despite the law seeking to, in
part, benefit defendants, defendants, more often than plaintiffs, oppose class certification.
In Washington State, CR 23 governs a determination of whether to certify a class
action. Nevertheless, because CR 23 mirrors its federal counterpart, cases interpreting
the analogous federal provision are highly persuasive. Schnall v. AT&T Wireless
Services, Inc., 171 Wn.2d 260, 271, 259 P.3d 129 (2011). Because class actions are a
specialized proceeding available in limited circumstances, the trial court must conduct a
"rigorous analysis" of the CR 23 requirements to determine whether a class action is
appropriate in a particular case. Oda v. State, 111 Wn. App. at 93 (2002). Plaintiffs
seeking class certification bear the burden of demonstrating that they meet all the
requirements of CR 23. Weston v. Emerald City Pizza, LLC, 137 Wn. App. 164, 168, 151
P.3d 1090 (2007). Class actions are specialized types of suits, and, as a general rule,
must be brought and maintained in strict conformity with the requirements of CR 23.
Lacey Nursing Center, Inc. v. Department ofRevenue, 128 Wn.2d 40, 47,905 P.2d 338
(1995); DeFunis v. Odegaard, 84 Wn.2d 617,622,529 P.2d 438 (1974).
This court reviews a trial court's decision to certify a class for abuse of discretion.
Miller v. Farmer Brothers Co., 115 Wn. App. 815, 820, 64 P.3d 49 (2003); Oda v. State,
111 Wn. App. at 90. When this court reviews a trial court's decision to deny class I 32 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
certification, the decision is afforded a substantial amount of deference. Schnall v. AT&T
Wireless Services, Inc., 171 Wn.2d at 266. A court abuses its discretion if its decision is
based on untenable grounds or is manifestly unreasonable or arbitrary. Oda v. State, 111
Wn. App. at 91. We generally review decisions certifying a class liberally and err in
favor of certifying a class, since the class is always subject to later modification or
decertification by the trial court. Miller v. Farmer Brothers Co., 115 Wn. App. at 820;
Brown v. Brown, 6 Wn. App. at 256 (1971 ). An appellate court resolves close cases in
favor of allowing or maintaining the class. Nelson v. Appleway Chevrolet, Inc., 160
Wn.2d 173, 188-89, 157 P.3d 847 (2007); Smith v. Behr Process Corp., 113 Wn. App.
306,319, 54 P.3d 665 (2002).
We wonder if two of these principles conflict. If we are to defer to the trial court's
decision, we question whether we should resolve close cases by approving a class action
when the trial court denied certification. The gist of affording a trial court discretion is to
affirm the trial court in close calls.
We will reverse a class certification decision if the trial court made its decision
without appropriate consideration and without articulated reference to the criteria of CR
23. Washington Education Association v. Shelton School District No. 309, 93 Wn.2d at
793. We will not disturb a trial court's certification decision if the record indicates the
court properly considered all CR 23 criteria. Nelson v. Appleway Chevrolet, Inc., 160
33 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
Wn.2d at 188. Our record shows that the trial court considered all criteria. In fact, the
trial court ruled in favor of the plaintiff nurses in all but one CR 23 requirement.
CR 23 divides itself into two sections: CR 23(a), which lists four prerequisites for
all class actions; and CR 23(b ), which lists three alternative requirements, only one of
which need apply. CR 23(a) declares:
Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if ( 1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Under CR 23(a), the plaintiffs must satisfy the four prerequisites of
(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of the representatives.
Admasu v. Port of Seattle, 185 Wn. App. 23, 30-31, 340 P.3d 873 (2014), review denied,
183 Wn.2d 1009, 352 P.3d 187 (2015). We do not address whether the nurses fulfilled
all requirements of CR 23(a). The trial court found that the nurses' suit fulfilled all four
requirements of the subsection, and Lourdes Medical Center does not challenge this
ruling on appeal.
In addition to CR 23(a), the plaintiff must meet the requirements of one of the
subparagraphs in subsection CR 23(b ). This subsection reads:
Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of section (a) are satisfied, and in addition:
34 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
( 1) The prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interest; or (2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Although the nurses argue that class certification was appropriate under any of the
three subsections of CR 23(b), certification under CR 23(b)(l) and (2) applies only when
the primary claim is for injunctive or declaratory relief. Under CR 23(b )(1) and (2),
monetary relief must be incidental to the declaratory relief. Nelson v. Appleway
Chevrolet, Inc., 160 Wn.2d at 189 (2007).
Our trial court ruled that plaintiff nurses did not meet CR 23(b)(l) because
plaintiffs' primary recovery is monetary damages. Although the nurses originally
35 No. 33556-9-111 Chavez v. Our Lady of Lourdes Hosp.
requested injunctive relief, the focus of their claims has been payment for unpaid meal
and rest periods. After the nurses filed suit, Lourdes Medical Center ended the practice
of utilizing the Kronos system and no longer automatically deducted time for meal
breaks. Given this substantial, systemic victory, the nurses need no declaratory or
injunctive relief. The nurses may still seek a declaratory ruling with regard to what
constitutes a break during acute care when the hospital assigns a nurse to a particular
patient. Still the trial court did not abuse its discretion by ruling the nurses' action
primarily seeks monetary relief and does not meet the requirements of CR 23(b )(1) or (2).
On appeal, the parties aptly focus their briefing and analysis on whether the trial
court correctly denied class certification under CR 23(b)(3). To repeat, CR 23(b)(3)
allows certification when:
The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
To restate the rule, class certification is appropriate under CR 23(b )(3) if common
questions of fact or law predominate over individual ones and a class action is superior to
other available methods of adjudication. Sitton v. State Farm Mutual Automobile
Insurance Co., 116 Wn. App. 245, 253, 63 P.3d 198 (2003). Plaintiffs seeking class
certification under subsection (3) must show both predominance and superiority. Admasu
v. Port ofSeattle, 185 Wn. App. at 31 (2014 ).
36 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
Our trial court denied certification on a lack of both predominance and superiority.
Since both must prevail, we address only superiority. The trial court determined that
certification of the class would be unmanageable because of the confusion that could
arise from trying to manage nine subclasses. The trial court believed that nine subclasses
would be essential because of the differences in the respective hospital departments.
Even if individualized issues predominate, CR 23 (b )(3) also requires that a class
action be superior to other available methods for the fair and efficient adjudication of the
controversy. Schnall v. AT&T Wireless Services, Inc., 171 Wn.2d at 275 (2011). Under
the rule, a class action must be superior, not just as good as, other available methods.
Schnall v. AT&T Wireless Services, Inc., 171 Wn.2d at 275. The superiority requirement
focuses on a comparison of available alternatives. Schnall v. AT& T Wireless Services,
Inc., 171 Wn.2d at 275; Sitton v. State Farm Mutual Automobile Insurance Co., 116 Wn.
App. at 256. In traditional statewide class actions, these alternatives include joinder,
intervention, or consolidation. Schnall v. AT&T Wireless Services, Inc., 171 Wn.2d at
275.
Manageability is only one of the elements that goes into the balance to determine
the superiority of a class action in a particular case. Other factors must also be
considered, as must the purposes of CR 23, including: conserving time, effort and
expense; providing a forum for small claimants; and deterring illegal activities. Sitton v.
State Farm Mutual Automobile Insurance Co., 116 Wn. App. at 257. The trial court is
I No. 33556-9-111 Chavez v. Our Lady of Lourdes Hosp.
particularly in the best position to address case management concerns. Sitton v. State
Farm Mutual Automobile Insurance Co., 116 Wn. App. at 256-57.
At oral argument, the nurses' counsel commented that individual nurse claims
could vary between $2,000 and $15,000. Class actions seek to render claims of small
amounts easier to litigate. Nevertheless, we note that, as an alternative to a costly
superior court class action suit, nurses seeking $5,000 or less could litigate in the
inexpensive small claims court. RCW 12.40.010. We further observe that the trial court
best knows the ability of the Franklin County Superior Court's ability to manage a class
action process and trial.
We note common questions with regard to liability of Lourdes Medical Center for
at least many of the nurses. The common issues include what constitutes a rest period in
the context of nursing? Do intermittent rest periods comply with the law's demand for a
fifteen-minute rest period each four hours of work? To what extent must the employer
monitor whether employees receive breaks? Must the hospital have provided a second
meal during a twelve-hour shift, and, if so, could the nurse waive the meal? We note,
however, that Lourdes Medical Center has not conceded any illegal activities.
Plaintiff nurses may argue a court should certify a class action solely on the
ground that the suit contains common issues oflaw. Nevertheless, the trial court must
weigh the commonality with other factors before determining predominance. Also, we
base our decision on the superiority prong not the predominance prong.
38 No. 33556-9-III Chavez v. Our Lady ofLourdes Hosp.
The plaintiff nurses rely on Tyson Foods, Inc. v. Bouaphakeo, _ U.S. _, 136 S.
Ct. 1036, 194 L. Ed. 2d 124 (2016), wherein the nation's high Court affirmed the trial
court's certification of an employees' class action suit against an employer because the
employees failed to garner statutorily mandated overtime pay for time spent donning and
doffing protective equipment. A major distinction between Tyson Foods and this appeal,
of course, is that the Tyson Foods' trial court exercised its discretion in granting class
status. Another distinction concerns the variable among workers' activities, on which the
employer sought to avoid certification. Tyson Foods argued that differences in the
composition of gear worn by various employees caused a variation in the amount of time
to don and doff the gear. The variables concerning Lourdes Medical Center nurses'
ability to exercise breaks are greater. Each nurse's story will vary such that her story can
fill one trial. Retelling those scores of stories in one case could be unmanageable.
In Creely v. HCR ManorCare, Inc., 920 F. Supp. 2d 846 (N.D. Ohio 2013), nurses
and nursing assistants brought action against a provider of medical and rehabilitative care
and alleged violations of the federal Fair Labor Standards Act, 209 U.S.C. §§ 201-219.
The employer also utilized the Kronos time system, with an automatic deduct function,
for work hours accounting. Employees complained that they often did not break for
lunch and the employer did not compensate them for the deducted time. The case
involves a unique statute for class actions under the Fair Labor Standards Act.
Nevertheless, the substantive rules echo the requirements of Fed. R. Civ. P. 23 and any
39 No. 33556-9-III Chavez v. Our Lady ofLourdes Hosp.
difference in the rules benefit the employees. The trial court denied class certification.
Although the facts involved workers employed at numerous facilities, the court also
noted the ability to exercise uninterrupted breaks depended on the nurse's unit, shift,
manager, patient population, job duties, and individual habits. The court recognized the
desirability of the nurses pooling resources to seek vindication of employment rights.
Nevertheless, the court considered a class action unmanageable because each nurse's
right to compensation hinged on his or her individual experience.
We note that at least one decision, Perez v. Safety-Kleen Systems Inc., 253 F.R.D.
508 (2008), likely disagrees with the court's ruling in Creely v. HCR ManorCare Inc.
Differing decisions, however, bolster the need to afford the trial court discretion in its
ruling. The trial court's role remains to assess factors relevant to a decision and weigh
those factors in accordance with the idiosyncrasies of the circumstances.
Our trial court's ruling echoed the concerns expressed by the federal court in
Creely v. HCR ManorCare Inc. At least under the evidence presented by Lourdes
Medical Center, the duties and experiences performed by one nurse, even as to nurses
working in one hospital department, cannot be generalized. Thus, the trial court did not
abuse its discretion in denying class certification.
CONCLUSION
We affirm the trial court's order denying class certification. We remand the case
to the superior court for further proceedings.
40 No. 33556-9-III Chavez v. Our Lady of Lourdes Hosp.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, C
WE CONCUR:
?7dJ,bw~ /)= Siddoway, J.
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